All posts by Paul J. McAndrew, Jr.

simpsons-homer-working-from-home.jpg

I was injured at home while working for my employer. Am I entitled to workers’ compensation benefits?

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

We’ve all seen the ads for “work from home” jobs (spoiler alert – many are scams). However, corporations like Apple, IBM, CVS, and many, many more are frequently advertising work-from-home or telecommuter jobs to employees thus providing a flexible work schedule. The question then arises – what happens if the telecommuting employee is injured at home? For example, what if the employee is injured during a personal coffee break? What if he slips on his driveway? Or, if she trips over her pet while walking to her van to get work supplies?

 

In deciding on whether an employee’s injury may be compensable, courts have generally considered (1) how regularly the employee works from home, (2) the presence of work equipment at home (e.g. work computer or corporate phone), and/or (3) other conditions particular to that employment that make it necessary for the employee to work from home. The courts specifically look to whether the employee is working from home for his or her convenience, or if it’s necessary from the employer’s standpoint that the employee work from home (e.g. there is no other suitable place of employment offered by the employer).

 

For example, in Utah, the Court of Appeals held that a sales manager who was spreading salt on his driveway in anticipation of an important business delivery sustained a compensable slip and fall at work. The Court determined that the manager’s motivation in spreading the salt was to assist the employer’s business. [AE Clevite Inc. v. Labor Comm’n, 2000 UT App. 35, 996 P.2d 1072 (2000)]. Also, where a custom decorator for J.C. Penney was walking out to her van in her garage to get fabric samples and tripped over her dog, that injury was also compensable [Sandburg v. J.C. Penney Co, Inc., 260 P.3d 496 (2011)]. The Court explained that the home premises was also her work premises and the decorator had to keep samples in her van to show potential customers.

 

The bottom line is that when telecommuters are injured at home during the actual performance of their jobs, regardless of how insignificant, the injury may be compensable.

 

Refinery.jpg

Anacortes, WA Refinery Fined $77,000 for Workplace Violations Following Toxic Release

Today’s post comes from guest author Kit Case, from Causey Law Firm.

Shell Oil Products is facing $77,000 in fines from the state Department of Labor & Industries (L&I) for workplace health violations after an investigation into an uncontrolled toxic release last February.

L&I began the investigation at Shell’s Puget Sound Refinery in Anacortes after learning of an incident during which the refinery’s main flare released contaminants into the environment. The release prompted numerous odor complaints from the community nearby.

A refinery flare is a disposal system that burns off waste gases and vapors that cannot be used during production. It’s also a safety device that can help prevent fires or explosions during power outages or other emergencies. The flare must be decontaminated and shut down periodically for maintenance.

The investigation found that the company had skipped critical decontamination steps while shutting down the main flare for routine maintenance. Failing to implement safe work practices caused an uncontrolled release that exposed workers to toxic substances including mercaptans, hydrogen sulfide, hydrocarbons and pyrophoric iron.

The company was also cited in 2013 for skipping critical steps when shutting down the flare. In that case, there was an explosion that nearly injured several contractors and Shell employees.

For the recent incident, Shell Oil Products was cited for one willful violation and fined the maximum of $70,000 for knowingly and intentionally not following safe work practices for the control of hazards when shutting down the flare.

The company was also cited for one serious violation with a penalty of $7,000 for giving workers the incorrect procedure for shutting down the flare.

A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard to a hazard or rule. A serious violation exists if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition.

Over the last three years, L&I has responded to several complaints that resulted in 11 inspections at the refinery.

The employer has 15 working days to appeal the citation. Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping workers and families of those who have died on the job.

Photo: Paul Joseph Brown/Seattle Post-Intelligencer

810.jpg

Partner Chris Latham Supports Construction Site Safety At City Hall Rally

Today’s post comes from guest author Victor Pasternack, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Partner Chris Latham recently joined thousands of building trades workers, Councilman Corey Johnson, and Manhattan Borough President Gale Brewer outside City Hall to protest the deaths of workers on construction sites in 2015. 14 of the 16 workers who died on construction sites in 2015 were non-union workers.
 
The rally coincided with the announcement of a new bill, sponsored by Brewer and Johnson, that would obligate all workers on buildings taller than 10 stories to go through state-approved apprenticeships.
 
In her remarks, Brewer said “We have to raise safety standards and put in place measures that will ensure every worker on any sized building has safety equipment, proper training and proper quality supervision,” she said. “We have to set the bar higher.”
 
For more information about how you can help ensure that both union and non-union construction workers earn middle class wages, receive fair benefits, are properly trained and work on safe worksites go to http://www.middleclassstrong.com/.

2015 Top Ten Workers’ Compensation Fraud Cases

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

  Number Value
Non-Employee Fraud Cases 9 $ 848,000,000
Employee Fraud Cases 1 $ 1,500,000
Total $ 849,500,000

The top six of our top ten fraud cases of 2015 are from California, a perennial offender. The other four cases are from New York, Washington, Utah, and Massachusetts. As we continue to discover each year, non-employee fraud cases dominated the list. This year’s dollar amounts were particularly large, with nearly $850 million in total frauds. The largest fraud was a $580 million kickback scheme out of southern California. Authorities have begun to enforce the law against companies who have misclassified their workers and we expect to see a continued increase in these enforcement actions, both against our traditional offenders and against some of the sharing economy companies who are now the subject of multiple lawsuits. 1. (California) Surgeons and Owner of Hospital Charged In $580M Kickback Scheme (11/26/15)

(Credit: MoneyTimes) The kickbacks involving millions of dollars are increasing the insurance costs for patients.Such practice corrupts the relationship between doctor and patient, thus polluting medical profession.

(Credit: MoneyTimes) Kickbacks involving millions of dollars are increasing insurance costs for patients.

Five people have been criminally charged for their involvement in a medical kickback scheme that defrauded the California workers’ compensation system and insurance companies of $580 million over eight years. Two of the five charged were surgeons and one was a former owner of Pacific Hospital. The scheme benefited doctors and chiropractors who referred their patients to two Southern California hospitals for thousands of operations.   2. (California) FedEx Settles Misclassification Case For $228 Million (6/16/15)2. fedex FedEx has agreed to pay $228 million to resolve claims by 2,300 FedEx Ground pickup and delivery drivers in California. FedEx was labeling drivers as independent contractors in order to avoid the costs of trucks, branded uniforms, scanners, fuel, maintenance of the trucks, insurance and much more. Drivers were also not paid for missed meals, rest periods, or overtime compensation.   3. (California) Spanish Translators Caught in $24 Million Workers’ Compensation Fraud Case (12/17/15)Screen Shot 2016-01-16 at 12.21.25 AM The owners of G&G Translation services and over 200 of their employees fraudulently billed $24.6 million in workers’ compensation cases for services never rendered.  For example, one bill was for $422,000 for translation services by a translator who was actually in prison at the time. G&G obtained a list of patients who needed translation services at medical facilities and used those names to submit bills to large self-insured employers. 4. (California) Sewing Subcontractors Charged With Running $11 Million Dollar Workers’ Comp Insurance Fraud Scheme (4/16/15) Caroline ChoiJae KimTwo CEOs of a sewing company were arrested on April 15, 2015 for conspiring with their CPA, Jae Kim, to underreport $78.5 million in payroll to multiple insurers. They were arrested on 18 felony counts of workers’ compensation insurance fraud totaling more than $11 million in losses.   5. (California) Truck Drivers Awarded More Than $2 Million Due To Misclassification By Employer (2/3/15)
Pacer Cartage drivers protesting in November (Photo from the Teamsters Union)

Pacer Cartage drivers protesting in November (Photo from the Teamsters Union)

Pacer Cartage, Inc. (one of the largest port trucking companies in the U.S.) owes $2,026,483 to seven truckers due to “unlawful payroll deductions and expenses as part of a wage theft scheme” by the company. The employees were incorrectly classified as “contract laborers” who were forced to lease their trucks by their employer, and the employer avoided paying workers’ compensation premiums. Their leases were deducted from their paychecks, and the employees were not allowed to use the trucks for any other business purpose or drive them home.     6. (California) NFL Player and Gallagher Bassett Adjuster Plead Guilty to Wire Fraud & Filing False Workers’ Comp Claims for $1.5 Million (10/1/15)
Marcus Buckley (55) played for the New York Giants from 1993 to 2000.

Marcus Buckley (55) played for the New York Giants from 1993 to 2000.

Claims Adjuster Kimberly Jones filed fraudulent workers’ compensation claims on behalf of former NFL player Marcus Buckley between 2001 and 2011. In 2006 Buckley filed a workers’ compensation claim that was settled for $300,000 in 2010. After the case was settled, Buckley and Jones filed numerous requests for reimbursement under Buckley’s closed cases providing fictitious invoices, statements and credit bills. Buckley received more than $1.5 million.   7. (New York) Plumbing and Heating Contractors Settle for $1.4 Million(4/21/15) USDOL_Seal_circa_2015.svgFour Long Island City plumbing and heating contractors misclassified and underpaid a total of 300 employees. At least 25 employees were misclassified as independent contractors, several hundred were not paid overtime, and the companies’ recordkeeping did not meet the Fair Labor Standards Act requirements. The companies settled out of court when the Wage and Hour Division’s New York City District Office investigated and litigation began for a total of $710,000 in back wages to cover September 2010-April 2014 and damages for 300 employees equaling $1.42 million dollars.   8. (Washington) Drywall Contractor in Walla Walla Must Pay More Than $1 Million in Workers’ Compensation Premiums and Penalties (4/17/15) drywallShawn A. Campbell and his wife were held personally liable for over $1 million in unpaid premiums, interest and late penalties for their company. Campbell listed his employees as co-owners in order to avoid paying workers’ compensation premiums.   9. (Utah) Construction Company to Pay $700,000 for Misclassification Scheme (5/1/15) CSG Workforce Partners (a.k.a. Universal Contracting, LLC and later as Arizona Tract/Arizona CLA) required their workers to classify themselves as “members/owners” which limited their legal rights and gave them no minimum wage guarantee, no time-and-a-half overtime pay, no workers’ compensation insurance and no unemployment insurance. When the employers found out that the state of Utah was investigating, they packed-up and left for Arizona. However, they were tracked down and charged $600,000 in back wages to employees as well as $100,000 for their willful violations of employment laws. 10. (Massachusetts) Roofing Business Owners Indicted for Workers’ Comp Fraud Totaling $615,000 (3/25/15) Two business owners allegedly failed to accurately report their payroll and underreported earnings in order to be granted lower insurance premiums in three roofing companies between 2008 and 2014. They avoided paying a total of more than $615,000 in insurance premiums alone.   For more information, contact: Leonard T. Jernigan, Jr. Adjunct Professor of Workers’ Compensation Law N.C. Central University School of Law The Jernigan Law Firm 2626 Glenwood Avenue, Suite 330 Raleigh, North Carolina 27608 (919) 833-0299 ltj@jernlaw.com www.jernlaw.com Twitter: @jernlaw Blog: www.ncworkcompjournal.com

work_comp_claim_denied.jpg

Action Needed To Ensure Sick 9/11 First Responders Receive Benefits

Animal Control Officer Diane DiGiacomo

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

A couple weeks ago, the Workers’ Compensation community was stunned over the outcome of the case of Animal Control Officer Diane DiGiacomo who developed cancer from exposure to toxins in the air after 9/11. Diane’s job was to search for and rescue pets near Ground Zero when many of the buildings surrounding the area were either evacuated or abandoned for weeks after the terrorist attack. 

Diane had filed a Workers’ Compensation claim after being diagnosed with breast cancer that had metastasized to her brain. The judge ruled that she was not entitled to New York State Workers’ Compensation benefits because she had not filed a timely claim. At the time of the ruling, Diane was bedridden and weighed a mere 60 pounds. Tragically, four days after the decision, she died as a result of her cancer. While my firm did not represent her, Diane’s tragic story touched many of us in the industry, whether as advocates for the injured worker or as defense counsel. What makes this case particularly sad is that the judge noted it was clear from the medical evidence that the cancer developed at least in part due to her exposure to the toxins in the air. Unfortunately, Diane was not entitled to Workers’ Compensation benefits because the deadline to register had passed.   

In order to be able to obtain Workers’ Compensation benefits for exposure after the 9/11 attacks, those who participated in the rescue, recovery, and clean up operations had to file a TWC-12 registration form prior to the current deadline of September 11, 2014. You did not have to actually be sick to file this form, but it preserved your rights if you worked in the area to file a claim later if you were found to be sick. It should be noted that the deadline has been extended twice because many of the illnesses such as cancer are slow starting and do not manifest themselves until many years after final exposure to toxins. The New York State Legislature has not extended this deadline again, at least as of this date.  

Officer DiGiacomo did not file her claim until sometime after September 11, 2014, because she was not actually diagnosed with cancer until after this date. According to the New York State Workers’ Compensation Board website, as of September 11, 2011, there were close to 49,000 WTC- 12 forms filed; however, hundreds or even thousands more may have been at the site doing rescue, recovery, and clean up and have not registered precisely because they were not sick as of the deadline or they didn’t know they had 9/11-related medical conditions. Perhaps it was based on their lack of understanding of the law or the opinion of some that they did not want to register because they somehow felt they would be taking benefits away from those who were already ill. Whatever the reason, it is imperative that the deadline once again be extended so that those who are currently ill, or become ill, have the full protection of the law.  

A bill introduced in the New York State Assembly by Assemblyman Peter J. Abbate, Jr., and co-sponsored by Assemblyman Phillip Goldfeder to extend the deadline to September 11, 2017, is still sitting in Committee. While Officer DiGiacomo did not live long enough to see the deadline extended, it is not too late to compensate her son and the rest of her family. Let’s make sure that those who helped get our city back on its feet are not forgotten.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Bikes vs Cars: How did it come to this?

Today’s post was shared by TreeHugger.com and comes from www.treehugger.com

bikes vs cars

Many people still don’t get that bikes are not just recreation, they are transportation. Even fewer people realize the impact that getting people out of cars and on to bikes can have on our cities. Bikes vs Cars, a new film by Fredrik Gertten, looks at the struggle to find a place for the bike in this world of cars that we live in now. Because as we have said on TreeHugger and Gertten says in his Director’s statement:

If all cities adopted the model Copenhagen, where forty percent commute within the city on bikes, it would be a radical change for the world. Something you can measure in health, pollution, oil-usage. And now the conflict. The car, oil and construction industry is in the centre of our economic system. They are the ones who don’t want change, and if only in their pace even if the planet needs instant action.

Gertten visits cities around the world, meeting bike activists who are fighting to improve cycling. It starts in Sao Paulo with Aline Cavalcante, who rides her fixie with toe clips in some of the worst traffic conditions I have ever seen. I am surprised that she is still alive. Also in Sao Paulo is the wonderful Raquel Rolnik, a professor at the School of Architecture and urbanism trapped in her little Fiat complaining about traffic.

cycleway photo

Then it’s off to Los Angeles, where Dan Koeppel (seen on TreeHugger here) gives a history lesson in how cars took over, pushing cyclists and streetcar users off the road. He even takes us to the location…

[Click here to see the rest of this post]

16 major NYC hotels pledge to cut greenhouse gas emissions by 30 percent or more by 2025

Today’s post was shared by inhabitat and comes from inhabitat.com

mayor bill de blasio, bill de blasio, NYC Carbon Challenge, hotels to cut greenhouse gas emissions, hotels pledge 30 percent emissions cut, climate change, sustainability plan

It’s not quite a Christmas miracle, but we’ll take it. A number of big name hotels in the city have pledged to reduce greenhouse gas emissions by at least 30 percent over the next 10 years. Over 80 percent of the city’s emissions come from large buildings, so the initiative represents a significant step forward in the fight against climate change. The cuts are part of Mayor Bill de Blasio’s NYC Carbon Challenge program, which will see all of the city’s public buildings get eco-friendly retrofits by 2025. The Waldorf Astoria New York, Lotte New York Palace, and the Crowne Plaza Times Square are among 16 major hotels where owners have agreed to make cuts in the interest of climate change.

mayor bill de blasio, bill de blasio, NYC Carbon Challenge, hotels to cut greenhouse gas emissions, hotels pledge 30 percent emissions cut, climate change, sustainability plan

The mayor announced today that 16 major hotels will be joining in the effort to reduce the city’s carbon footprint over the next 10 years. “Whether we’re talking about universities, hospitals, and offices, or large apartment buildings and hotels, all of New York City has a stake in our fight against climate change,” said Mayor de Blasio in a statement. “If some of New York’s most iconic hotels can significantly reduce their carbon footprint, anyone can. NYC Carbon Challenge participants are joining City government in leading by example through the green retrofits all buildings should make – and that’s no small feat, with current Challenge commitments equivalent to removing over 100,000 cars from our roads.”

[Click here to see the rest of this post]

Bonus Features

Today’s post was shared by TreeHugger.com and comes from vimeo.com

An NY Times Critics’ Pick!
Bikes vs Cars depicts a global crisis that we all deep down know we need to talk about: climate, earth’s resources, cities where the entire surface is consumed by the car. An ever-growing, dirty, noisy traffic chaos. The bike is a great tool for change, but the powerful interests who gain from the private car invest billions each year on lobbying and advertising to protect their business. In the film we meet activists and thinkers who are fighting for better cities, who refuse to stop riding despite the increasing number killed in traffic.

SUBTITLE HELP – For all subtitle questions please see here: vimeo.com/help/faq/vimeo-on-demand/watching-purchased-videos#if-i-purchase-a-vimeo-on-demand-title-for-download-how-do-i-download-captions-or-subtitles-to-view-with-the-video. The best way for viewers to resolve any issues in their experience is to contact our support team here: vimeo.com/help/contact

[Click here to see the rest of this post]